Friday 20 October 2017

More on the Revocability of the Article 50 notice

Notice is served - 29th March 2017
The previous post looked at "The Reckless Fantasy of Brexit" and the view put forward this week by Dr Phil Syrpis (Bristol University) that Brexit ought to be ended now - A call to stop Brexit - 18th October 2017.  Dr Syrpis wrote: "There are various ways in which Brexit might be stopped. Legal opinion suggests that Article 50 may be unilaterally revoked ....."

In this previous post  (23rd July) I attempted to collate at least some of the available legal views on the question of unilateral revocability.  Although that post was a mere 3 months ago it seemed, at the time, to be not much more than an interesting theoretical debate but, as the adverse impact of Brexit on the economy is becoming clearer, the question of unilateral revocability of the UK's Article 50 notification may turn out to be not so theoretical after all.

Writing for the Constitutional Law Group blog, Cormac Mac Amhlaigh (Senior Lecturer Edinburgh University) argues that the notification is not revocable unilaterally - Can Brexit be Stopped under EU Law.   Ultimately, this is a question of EU Law and a definitive answer could only be given by the Court of Justice of the EU.  The question was not answered by the Miller and Dos Santos litigation (Judgment) which proceeded on a basis agreed between the parties that the Article 50 notice could not be withdrawn. Para. 26 of the judgment states:

"In these proceedings, it is common ground that notice under article 50(2) (which we shall call “Notice”) cannot be given in qualified or conditional terms and that, once given, it cannot be withdrawn. Especially as it is the Secretary of State’s case that, even if this common ground is mistaken, it would make no difference to the outcome of these proceedings, we are content to proceed on the basis that that is correct, without expressing any view of our own on either point. It follows from this that once the United Kingdom gives Notice, it will inevitably cease at a later date to be a member of the European Union and a party to the EU Treaties."

It seems that it may be possible for the UK to revoke its notice with the agreement of the EU27.  That would entail the Prime Minister approaching the EU Council and asking them to call the whole thing off.  The general view seems to be that agreement would be forthcoming but there is the interesting question of whether the EU27 would have to be unanimous in its agreement or would some other form of majority suffice?  (I will leave that for another day)!

In the event that the UK government wished to revoke the Art 50 notification could it simply do so acting under its prerogative power in foreign affairs?  It is argued by Robert Craig (LSE Law School and Durham Law School) that an Act of Parliament would be required - "Why an Act of Parliament would be required to revoke notification under Article 50" - UK Constitutional Law Group blog.

Robert Craig's argument is based on the point that Parliament enacted the European Union (Notification of Withdrawal) Act 2017 which authorised the Prime Minister to notify the UK's intention to withdraw.  Craig's reading of the Act is that it gave the PM a discretion about WHEN to notify the EU but not whether it could be done at all.  It is difficult, Craig argues, to read the Act in any way other than as evidencing Parliament’s settled intention, as a matter of law, for the United Kingdom to exit the European Union.  If that view is correct then Craig goes on to say that prerogative power may not be used to frustrate the will of Parliament and consequently an Act of Parliament would be required to authorise revocation of the notification.

Arguments about the effect of Article 50 would also arise if, for example, the Brexit negotiations produce an outcome which Parliament finds unacceptable - e.g. if there is a (potentially catastrophic) "no deal" outcome.  The crucial point here is that Article 50 operates on the international law plane.  It is EU law and not UK domestic law.  Therefore, the UK Parliament does not have the power to stop the Brexit process at EU level.  The UK Parliament may have - at least on the Diceyean view - legislative supremacy but the reality is that this is confined to territories and people subject to its jurisdiction.  This aspect of Brexit is considered in a post by Professor Mark Elliott (Cambridge University) - Can Parliament block a no deal Brexit?

Other questions:

Transition ...

On the distinct topic of a "transition period" following 29th March 2019 see Administrative Law Matters -  Implementing a Brexit transitional period: Briefing paper

The decision to leave ...

Has Parliament decided to take the UK out of the EU?  This question was considered on this blog back in June - see The (elusive) decision to leave the EU.   Certainly the EU (Referendum) Act 2015 contained nothing to make the referendum outcome legally binding though it is undoubtedly massive politically.

A legal challenge is in preparation to test whether there is a valid decision to leave - see the "Crowdfunded" challenge referred to HERE.  Suppose that this challenge results in a ruling that an Act of Parliament is required to expressly stipulate that Parliament has decided to take the UK out of the EU.  In that event, in order to continue with Brexit, it would be necessary for such legislation to be enacted to express the decision and to make it clear that the 29th March 2017 Article 50 notice was valid.  However that may be, nothing will alter the fact that, viewed from an EU perspective,  the EU is entitled to act on the basis that the UK adhered to its constitutional requirements in making a decision to leave.  The 2 year period referred to in Article 50 will continue to run.

These are just some of the legal conundrums thrown up by Brexit .....!  Perhaps these questions will remain as conundrums to entertain law geeks in the years to come.  Then again ..... who knows?

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